Tuesday, August 16, 2022

The forest and the trees of numbers

It is futile to expect the general election, especially the presidential election in a general election, to run without any dispute. While there are many “mature” democracies where the disputes are not prolonged, it is the nature of the beast that there shall be disputes. Kenya, infant democracy that it is, has a long and storied history of presidential election disputes. What is notable about the 2022 presidential election, is that it is not part of a grand opera of election violence. That’s progress of a sort.

I am not surprised that Raila Odinga has disputed the outcome of the presidential election. I am not surprised that William Ruto doesn’t think much of the dispute alleged by Mr Odinga. I am not even surprised that there are alleged behind-the-scenes shenanigans, some of a deeply disturbing and violent nature, that are connected to the behavior of the candidates, the election commission or other agencies and high offices of state. What is new, is that the dispute is based on the procedural powers and functions of the chairperson of the commission.

Article 138(10) says that the chairperson of the commission shall declare the results of the presidential election and notify the Chief Justice and incumbent president of the result. There’s little that is ambiguous about that provision. The obligation to announce and notify is placed on the chairperson of the commission. Article 138, broadly, sets out the procedure at a presidential election. The details of that procedure are set out in the Elections Act and the Elections (General) Regulations. So far as I know, the procedure does not require approval of the final tally contained in Form 34C by the other members of the commission. Indeed, the procedure does not require the details of the information contained in Form 34C to be discussed at a plenary session of the commission so that the commission may take ownership of the results.

In brief, and I’m taking massive liberties, the procedure is pretty straightforward. The ballots cast in a presidential election are cast at the polling station in each ward. The results in the ward are totted up and entered in a Form 34A. In the 2022 presidential election there were 46,229 polling stations, hence 46,229 Forms 34A. All the Forms 34A from all the wards in the constituency are forwarded to the constituency tallying centre, where the totals from all the Forms 34A are entered in Form 34B. There are 290 constituency tallying centers and therefore there are 290 Forms 34B. The 290 Forms 34B are then forwarded to the national tallying centre, and the totals are added up and a final sum entered in Form 34C. Meanwhile, each of the 46,229 Forms 34A are uploaded onto an electronic database, accessible by the public.

So far as I know, the commission does not weigh in on the totals contained in the polling-station-level Forms 34A, though it has powers to correct any errors if the errors are manifest on the face of the forms. But the individual Forms 34A or 34B are not the subject of discussions and deliberation before the commission’s members. They are the responsibility of returning officers (at the polling station) and the tallying officers (at the constituency tallying centers). The tabulation of the totals contained in the 290 Forms 34B requires patience. The totals contained in the 46,229 Forms 34A must be verified; once that happens, the rest is straightforward enough.

The question of a plenary session before the final tabulation of the Form 34C is interesting. Is it a statutory requirement or an administrative custom? Is there a constitutional, statutory or customary obligation for each commissioner to “own” the tally? I don’t think the question of “ownership” can impeach the tally contained in the Form 34C. In my opinion, the Form 34C can be tossed out if the tally contained in the form departs from the totals contained in the 290 Forms 34B or if those 290 forms are not a true reflection of the totals derived from the 46,229 Forms 34A. The commissioners’ two-step dance is a distraction from the real question that must be answered: are the numbers derived from 46,229 Forms 34A, 290 Forms 34B and one Form 34C wrong?

Friday, August 12, 2022

The era of Jicho Pevu is over

 “Th' newspaper does ivrything f’r us. It runs th’ polis foorce an’ th’' banks, commands th’ milishy, controls th’ ligislachure, baptizes th’ young, marries th’ foolish, comforts th’ afflicted, afflicts th’ comfortable, buries th’ dead an’ roasts thim aftherward.” - Peter Dunne

Kenya's softly-softly and incremental approach to constitutional reforms and implementation of the values and principles of the 2010 Constitution adopted an international norm as a truism: the press must be free to report the news, warts and all. Kenya's press, however, seems intent on devaluing the freedom protected by Article 34 through its cowardice, incompetence and greed.

In 2017, when Kenya last held a general election, it had become painfully apparent that the news media companies were in the grip of the political classes and certain parts of the State. Due to the intense competition between them, profits had shrivelled. Due to certain State policies, especially tax and anti-gambling policies, future revenue streams were threatened. News media companies laid off throngs of news reporters and journalists and replaced them with cut-rate entertainers. Investigative journalism - the kind protected by Article 34 - suffered the sharpest cuts. The era of Jicho Pevu is well and truly over.

In 2022 the extent of the decimation in the news media is apparent. This general election has laid bare the depth of the fall of the journalism sector. In contrast to 2017, where France-based server operators could not be roused, and the electoral body disobeyed the Supreme Court and refused to "open the servers", access to some of the raw data has been free and unfettered. Everyone and their cat has access to results forms for the presidential elections from the 46,000+ polling stations. Every news media company in Kenya has the chance to maintain a running tally (unofficial, of course) of the numbers, and informing their viewers and readers of the state of the presidential election. The news media has refused to do this.

It is not the job of news reporters and journalists to fondle and fellate the testicles of those whose they report on, not for money, not for access and not for favours. But here we are. We should have seen his coming. News media companies are profit-making entities. The bottom line is all that matters to shareholders. The health of journalism is important only insofar as it guarantees a fat profit margin. Business models that were based on advertising have cratered; advertisers have greater access to eyeballs than through classified pages or 30-second TV spots. The internet has democratised advertising and put a stake through the heart of the news business. Kenyan news companies have not adapted well.

Some have gone into gambling. Notice the number of TV ads promoting mobile betting? Some have got into entertainment. The share of entertainment programmes on TV outstrips news or educational media by a very, very wide margin. Some have started tabloids devoted to salacious and vulgar fare, in the hopes that advertisers will flock to those yellow rags. But the greatest change has been the severe moderating of the content published in the Op/Ed pages. Carefully reasoned anti-establishment screeds have been spiked; by and large, these days, it is milquetoast statements designed not to offend wabenzi. Kenya's journalism no longer afflicts the comfortable nor comforts the afflicted. Kenya's journalism is comfortable, its comforts coming from the assiduous attention of the political classes and State officers. The comforts are repaid by a supine, knees-apart approach to truth-seeking. If you have your mouth full of someone's testicles, you're not going to complain that his asscrack is rank, are you?

For this reason, and many more, you will not see them tell you the unvarnished truth about the Form 34s. You won't see them rock the boat. You won't see them lead from the front. You won't see them call out injustice and unfairness. You won't see them investigate political corruption. You won't see them defend the weak. You won't see them because they don't want to be seen. They just want to make money and have a good time. In short, they don't want to do their job but they want to get paid the big bucks.

Wednesday, August 03, 2022

The war of blame-shifting

"Let me apologise on behalf of the government. The electoral commission must be given whatever they want, whenever they want it in order to be able to carry out the free, fair, and justifiable election." - 3 August, 2022

The discerning among us will realise that the underlined italicised words have the effect of shifting blame from the maker of the statement to the beleaguered IEBC. The speaker apologises - and adds that it wasn't his fault. It was that other fellow who done us wrong. I did my job. Leave me alone.

It frequently surprises me the lengths to which men with power will go to avoid carrying the can for their decisions. This man is no different. He does as he pleases. Then when the shit hits the fan, he dissembles. When that doesn't work, he finds some hapless underling to blame for his actions. He almost never takes responsibility for his actions. It is almost always someone else's fault. Kwani mnataka nifanye nini? seems to be his modus operandi.

Despite the theatrical antics one or two irascible Kenyans, everyone and their cat knows that general election in Kenya shall be held at the end of five years after the previous general election. This is not rocket science. With this cast-in-stone calendar in mind, and knowing that polling stations in Kenya are public schools, no government official, regardless of his station in the firmament of the state, can pretend not to know this fact. Consequently, planning for the "disruption in the school calendar" during an election year should not be the cause of poor planning or poor execution of existing plans.

A responsible person would admit that they were wrong and leave it at that. A responsible person would know that sifting blame is the sign of a bad leader. But responsible persons do not consistently behave the way our speaker does. His notoriety is no longer amusing. Since he took up his job, he has acted as if he is surrounded by utter imbeciles, that only he knows what is best for everyone else, that his public statements are made for our own good, that he has no obligation to be careful, dignified or kind. He acts the way he does because he is utterly confident in the justness of his ill-judged causes and, more crucially, that he can and shall get away with them all.

Responsible behaviour is not a feature of the majority of his work colleagues, though. Few of them take the time to carefully consider the import of their public statements. They indulge in the most callous acts in the course of their official duties secure in the knowledge that the hoi polloi can do nothing about it - save, perhaps, to vent on social media sites, a largely futile fact in the face of social media engineering by well-resourced #547 "bloggers".

In 2003, in the wake of the Yote Yawezekana Bila Moi moment, Kenyans were found to be the most optimistic people in the world. That moment did not last. If the same Kenyans who responded to that poll were asked the same question today, how much are you willing to wager that the poll will reveal depths of despondency only experienced by people living in a war zone?

Thursday, July 28, 2022

The gods will not save us

If the Gods are fucking you, you find a way to fuck them back. It's Baltimore, gentlemen; the Gods will not save you. - Ervin Burrell, The Wire (S3E3)

If there ever was a truth that my peoples need to learn, it is that all the demigods they have created for themselves - the preening, selfish, avaricious, malicious and vindictive men (and a few women) they call "politicians" - deserve nothing but a cold shoulder if not a closed fist. It baffles me that otherwise sensible men and women still believe that what Kenya needs is incremental tinkering with the structures of political, economic, social and ecumenical power. I think it must be the water. Or urogi. Or uchawi. Something!

Those who unfortunate enough to watch the "presidential debates" between television news anchors and presidential candidates must have seen what I saw: a conspiracy to create the impression that politicians' feet were being held to the fire while, in reality, they were receiving hot stone massages from their pet TV entertainers. For sure, the TV pets threw in a sharp-toothed nip here and there that startled the pet-owners but all in all, it was a saccharine exercise in arse-kissing that served the power-brokers and un-served the people intending to vote.

Kenya and Kenyans have a habit of tiptoeing to the edge of truly radical change and pulling back at the last moment. We had an opportunity in 1990 when section 2A of the former Constitution was repealed. We had a second opportunity in 2000 when we appointed the Constitution of Kenya Review Commission and adopted the Bomas Draft. We had a third in the aftermath of the 2007 general election, when the country convulsed itself in terrible violence, and appointed a Committee of Experts in 2008 to consolidate all the constitutional reforms in a Harmonised Draft Constitution. At every stage, when faced with the hard choices that needed to be made, Kenyans kicked the can down the road and prayed to all its demigods to save them from having to make the decision.

Well, if it wasn't clear enough, the gods will not save us.

It behoves us to admit this to ourselves. It is the only way that we can recognise the iniquity of well-paid, fattened monsters making laws over us. The televised drama of the lies the candidates were prepared to openly peddle hid a dark secret; neither the politicians nor the neutered press is remotely interested in the truth. They will serve us drama, sensationalism, histrionics and all the other spectacles beloved of the entertainment industry to lull us into a false sense of constitutional accountability. It is a well-practiced sleight of hand. Regardless of what they profess their political stances to be, the one thing they are united in is in denying the people who vote for them the truth - or any access to the truth.

The gods intend to fuck us till we are quite dead. And then they will desecrate our corpses. And dance on our Potter's Field full of graves.

Radical change - a complete tear-down of these structures of power and control and abuse - is the only solution. Radical change will not be led by the people seeking political power in the general election. Nor will it be led by the people hiding the truth about the state of things even as they call themselves "the media". It will not be led by judges and magistrates - not those people who were so aggrieved that they were denied Mercedes-Benzes that they threatened to boycott work.

No, my peoples. The gods will not save us. We have to save ourselves. Only then can we save our country.

Friday, July 22, 2022

A lesson in the law

There are many members of my tribe, good lawyers mostly, who still believe that the law can do good. This fantasy they have woven for themselves has proven quite resilient, unaffected by the realities of modern Kenya. These are the sorts of people to say "persevere" and "good things come to those who wait". In short, these are the kinds of people Elsa Majimbo would probably find incurably stupid.

The ways of the law in Kenya are proof that the law is, has been, and shall forever be, a weapon. Kenya's law books are not filled with the tools to give an honest man an even chance against vagabonds, scallawags, miscreants and scofflaws of every shade. It is a hammer. It is wielded with the wickedness of men who know what only though great crime can they build their enormous fortunes. If in doubt, witness the dozens upon dozens of policemen who earn a pittance but command Croesus's fortune - land, mansions, expensive cars and multiple high-maintenance wives. Or the dozens upon dozens of lowly clerks through whose bank accounts billions wash through every day.

But it is in the free exercise of the adult franchise that the law bares its fangs. Reuben Kigame, so far as I can tell, has led a blameless life. Though part of the burgeoning "faith-based" sector, he seems not to have started a mummy-and-daddy "church". He sings songs of praise for a living. He does it quite well. His songs have captured the imagination of his many fans, with messages of Christian charity and fidelity to Christ's message. He, and his supporters, believe he has the moral, ethical and leadership qualities necessary to stand in the presidential election, to save Kenya from itself. Of course he is deluded - no one can save Kenya - but his delusion, like that of the Wajackoyas and Mwaures of this world, is not sufficient cause to keep his name off the ballot on the spectacularly weak-tea excuse that "it will cost an extra billion shillings to add his name to the ballot paper". The only way one can make such a laughed-out-of-court declaration is when one knows that he enjoys the protection of a very, very bad law.

Mr. Kigame is discovering that in order for him to sit atop the cabal of law-users, he first needs to get past the gatekeepers of the law. The law, in this case, has been turned on him and on its head. The technicalities so beloved of dishonest men is used with efficiency to ensure that his brand of presidential ambition is nipped in the bud as quickly and as ruthlessly as possible.

Mr. Kigame should have seen this coming. It has taken Kenya six years to try policemen for the murder of Willy Kimani, his client Josephat Mwenda and taxi driver Joseph Muiruri. It isn't as if the murders was difficult to solve. The murderers abducted their victims in plain sight. They didn't bother to hide their faces or their identities. They didn't bother to hide the reasons for the abductions or murders. They did it in the open in the full expectation that no one would complain too loudly or investigate too closely or bother with anything more than a slap on the wrist. After all, they were the forces of law and order, the embodiment of the law, the manifestation of justice.

Mr. Kigame wants to become the head of this governmental machinery and I can only wonder at his naiveté - or recklessness. I can understand the hubris of an ex-special-branch cop at the heart of the Ouko murder investigation throwing his hat in the ring. Or a too-long-in-the-tooth Kanu youthwinger. Or even an over-the-hill political Don Quixote. Even a pastor-lawyer kind of makes sense. But I don't know what Mr. Kigame, gospel artiste, hopes to gain by forcing his way onto the ballot. Maybe the Christian God he sings praises to has whispered in his ear that he is the national messiah. Maybe he has unlocked the secrets of the universe. It doesn't matter. What matters is that he forgot the first rule of Kenyan politics: he forgot that the law was not his friend when he went before the courts of law looking for salvation.

Friday, July 15, 2022

The indignity of extremist social control

Some of us have extremely thick skin which we cover in resplendent glamour. Many of us, though, are extremely sensitive, particularly about being called out in public for the apparent violation of a norm. Many of us have seen that TikTok video of a fashion maven narrating her treatment at the hands of watchmen at Strathmore University's Madaraka Estate Campus. There are those of us who have shown solidarity with her, and demanded that Strathmore abandon its demeaning dress code. Some others, however, have blamed the victim, saying that she should have known better.

We have faced these kinds of issues in the past, usually when something tragic has happened and the victim of the tragedy has been a woman. Almost a decade ago, a woman was assaulted, stripped to her underwear and paraded in public because the men who assaulted her thought that her dress was "inappropriate" and "against African culture". It led to My Dress, My Choice, a public protest, that attempted to advocate for the treatment of women in public on the basis of their character and actions, rather than the length of their skirts or the tightness of their shirts. The protect did not receive the full-throated support of the State (though a few women parliamentarians joined in), the ministries of faith in Kenya and, certainly, none of the institutions of higher learning such as Strathmore. For sure, influential opinion-shapers and social influencers were determinedly quiet and the protest, and issue, fizzled out from public notice.

Now comes the ill-advised shenanigans of Strathmore's lecherous watchmen, their lechery receiving the endorsement, encouragement and imprimatur, of a respected university. What has emerged over the few days since the TikTok video was shared on social media is that, and this is not surprising, the Strathmore policy is more strictly enforced when the target of the policy is a Black person, particularly a Black woman. If the offender is of apparent Caucasian descent, they will be given greater leeway, something that many thought would be anathema at a university campus in the twenty-first century.

We have been witness to the lengths the mostly-male victim-blaming will go and how far some are prepared to bend backwards to justify the way that woman was treated. It comes as no surprise even as it stings that Black women are, by and large, still second-class Kenyans. In my opinion, there was no reason for the woman to attempt to justify her choice of dress for the presentation she was to make at Strathmore; as a maker of fashion videos, renown in her field, her choices were not subject to reproach. Given the audience she was going to speak to - young people, mostly - and the subject she was going to speak on - modern fashion - I thought she had presented herself beautifully and, though it need not be said, decently. In fact, attempting to say that she should have been allowed to proceed with her presentation because non-Black women are given freer license by that university misses the point. All women deserve to be treated as equals and with dignity.

There seems to be a mean-spirited determination to exert ever-tighter control over us, whether that control comes in the shape of the ham-fisted Huduma Bill (which has very little huduma in it) to the crass, Victorian-England demands for modesty (and purity) from mostly-Black women by institutions such as Strathmore. We all deserve lives of dignity and that includes lives where we are not judged on the basis of our outer accoutrements. We deserve to be treated with decency and respect. We should loosen the tight bonds of control, if not cast them aside entirely, that police how we walk, talk, dress, think, or present ourselves. A society that celebrates and protects the freedom of expression is, in my estimation, happier and more just. But so long as institutions built by and for male-dominated control continue to make the rules, especially undignified and bad rules, we are the poorer for it as a people.

Tuesday, July 12, 2022

Small men, big consequences

In the middle of drafting a pretty difficult statutory instrument, I made the fatal error of watching the former deputy governor of Nairobi City debate the City's senator. The two deeply flawed candidates hurled accusations (and shade) with unpractised unease, stumbling over memorised zingers and forgetting practiced put-downs. Both tried, and failed, to paint themselves as the City's Second Coming. We deserve so much better.

Let us begin with the former deputy governor. In March 2017, according to him, he made the conscious decision to stand in the general elections as Mike Sonko's running mate. After they were elected, he only served for six months before quitting. He claims it is because Mr Sonko refused to give him work and, consequently, his conscience could not allow him to continue earning a public salary for no work done. 

What he doesn't say is that after he resigned, and it became clear that Mr Sonko would not be impeached as swiftly as his rivals had hoped, an unseemly campaign was launched to declare his "resignation" as anything but a resignation so hat he could be brought back into public service so that when Mr Sonko was finally pushed out the door, the former deputy governor could step into the breech. That plan was swiftly abandoned when someone read the constitution and pointed out that as the former deputy governor had already taken up new employment, he could not legitimately claim that he had not resigned, and therefore his path to the governor's office must, of necessity, pass through a fresh election. No one wanted that.

The former deputy governor's political antics recalled the fiasco that was his appointment as the chairperson of the board of the then Anti-Counterfeit Agency. His appointment was challenged in court. It was declared to have been unlawful. Even then, it appeared that he did not know what he was getting into when he took up the appointment and when controversy followed the appointment, he did not have the professional or technical skills to tamp down the flats and he eventually left the job under a cloud.

The candidacy of the senator is not without its own dramatic turns. He has struggled to put to rest rumours that the does not possess the statutorily-required university degree, trying to obfuscate the matter by alleging state-sponsored machinations in the imbroglio. He offers no proof of the hand of senior state officers in his tribulations.

One recalls when, at the height of the Covid-19 pandemic, when the state was cracking down hard on violators of Covid-19 rules, the senator was found to be involution and, rather than tae his lumps, he attempted to use his high office (including as chair of a Covid-19 oversight committee in the senate) to avoid responsibility. He made threats. He claimed support from the same high state officers allegedly persecuting him today. Whatever integrity he claims today was missing when he was clearly in the wrong.

His record as senator is not as rosy as he paints it. While he has been quite active in senate business, it is not reflected in the way the city's county government has been overseen. The senate's role includes protecting the interests of counties and county governments. As the city's senator, when it became clear that the governor and deputy governor were incapable of governing effectively, it was his responsibility to lead the charge in having them removed from office. Instead, he claims that a senate convention prevented him from doing so - that he would be accused of conflict of interest in supporting the impeachment of the governor. Even if that were true, as part of the city's political leadership, he should have intervened to ensure that the county government was governed, and overseen, effectively such that it would not require the intervention of the national government or the appointment of a military officer to undertake municipal services.

Nairobi will get the election it doesn't want between candidates it can't stand. That has been the tragedy since the advent of devolution. None of the City Fathers have covered themselves in glory. While we pray for the best, on the basis of history and current shenanigans, I fear that we must prepare for the absolute worst.